Stephanie Morris v Lauren Richards Ltd

Where dismissal is itself an alleged discriminatory act, whether an impairment’s effects are likely to be long-term must be assessed at the time of the relevant acts. A tribunal must not reason that the effects would end because the claimant will leave the employment as a result of that dismissal.

Medical evidence is not invariably required to prove the likely duration of a mental impairment. The question remains one of factual assessment on the available evidence. An appellate tribunal may not treat an error as immaterial unless it can safely conclude that it could not have affected the result.

The claimant brought disability-discrimination claims arising from alleged acts up to and including her dismissal in September 2019. At a preliminary hearing, the Employment Tribunal found that she had anxiety which substantially affected normal day-to-day activities, but that its effects were not long-term. It therefore held that she was not disabled for the purposes of Equality Act 2010.

The claimant appealed on the issue of long-term effect. The Employment Tribunal had reasoned in part that her anxiety was work-related and was unlikely to persist once she had left the respondent’s employment. The central issue was whether that reasoning was unlawful and, if so, whether the result was nevertheless inevitable without medical evidence.

1. Appeal allowed. The Employment Tribunal erred in deciding that the claimant’s anxiety was not likely to last for at least 12 months. Its reasoning materially relied on the proposition that the anxiety was caused by the workplace and would not persist after the claimant left the respondent’s employment.

2. That approach was impermissible because the dismissal was itself an alleged act of disability discrimination. The likelihood of persistence had to be assessed when the relevant acts were being taken, before implementation of the dismissal. The Tribunal’s reasoning was contrary to Parnaby v Leicester City Council UKEAT/0025/19/BA.

3. The erroneous reasoning was an essential, not severable, part of the explanation for the conclusion on long-term effect. The Employment Tribunal had not made an independent assessment of when, or in what circumstances, the substantial adverse effects would have ceased had the claimant remained in employment.

4. The absence of medical evidence did not make the claimant’s case bound to fail. Royal Bank of Scotland v Morris UKEAT/0436/10/MAA establishes no rule that expert medical evidence is required in every case. Although medical evidence will often be important for mental impairments, likely duration remains a factual assessment for the tribunal. Applying Jafri v Lincoln College [2014] ICR 920, the EAT could not safely conclude that the error could not have affected the outcome.

5. The case was remitted for rehearing by the Employment Tribunal on the limited issue whether, at each relevant alleged act, the effect of the claimant’s impairment was likely to last at least 12 months under Schedule 1 paragraph 2 of the Equality Act 2010. Recurrence was not remitted because the claim had been advanced on the basis of continuing effects, not an effect which had ceased and might recur.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the long-term-effect issue for rehearing: [2023] EAT 19.
• Employment Tribunal: judgment dated 9 February 2021 held that the claimant was not disabled because the effect of her anxiety was not long-term.